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How a Supreme Court case involving alleged stock fraud relates to the president’s power to fire Mueller

Special Counsel, and former FBI Director, Robert Mueller arrives before the House Judiciary Committee in 2013.
Special Counsel, and former FBI Director, Robert Mueller arrives before the House Judiciary Committee in 2013.
Alex Wong/Getty Images

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On the surface, a Supreme Court case involving the Securities and Exchange Commission would likely only pique the interest of financial junkies and the most die-hard court-watchers.

One such case currently before the high court appears to deal with stock fraud, but could expand into answering a question that’s been permeating through the country: does President Trump have the authority to fire White House special counsel Robert Mueller?

Lucia v. Securities and Exchange Commission looks at whether SEC administrative law judges (ALJs), who function as hearing officers within the SEC and other government agencies when a person or company is accused of violating antifraud laws, are “officers” and therefore subject to firing by the president, or are simply “employees,” which would prevent the president from firing them.

So, where do President Trump and Bob Mueller fit into all this? Lawyers for the Trump administration say that Mueller falls under the appointments clause’s definition of an “officer,” and President Trump has the authority to fire Mueller if he wants to do so. Others argue that Mueller was appointed on rules stating he can only be removed for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause,” therefore only deputy attorney general Rod Rosenstein would have the power to fire him.

So which is it? Officer or employee? Larry consults legal experts to dig into the matter.


Ilya Shapiro, senior fellow in constitutional studies at the libertarian Cato Institute, which filed an amicus brief in support of the petitioner in this case; editor-in-chief of the Cato Supreme Court Review; he tweets @ishapiro

Peter Shane, expert in administrative law and separation of powers; law professor at Ohio State University; his book on the separation of powers is "Madison’s Nightmare: How Executive Power Threatens American Democracy" (2009, University of Chicago Press)